Tompkins v. Sunday Creek Co.

68 W. Va. 483 | W. Va. | 1910

Bkannon, Judge:

Addie L. Tompkins, executrix of H. P. Tompkins, brought an action of trespass on the case against the Sunday Creek Company, a railroad corporation, to recover damages for the death of H. B. Tompkins caused by his being run over by a train. A demurrer to the declaration was sustained, and plaintiff not wishing to amend it, judgment was entered for the defendant. The declaration alleges that the railroad at the time of the misfortune and for a long time previous thereto was used' by. the public in general as a footpath and that the defendant had notice of that fact; that upon the night, of the accident, in November, 1907, while it was very dark, about eight o’clock at night, Tompkins was walking along the railroad; that while Tompkins was walking along the railroad the defendant ran a special train over the road; that the train was negligently run without a headlight or other light upon the forward end of the train, and was run without blowing a whistle, sounding a bell or signal of any kind; that the said railroad crossed another railroad and upon this other road, near the crossing of the two roads, a locomotive was standing, the steam escaping from which made a loud noise; that Tompkins was walking along defendant’s railroad and that Tompkins was without any warning whatever of the approach of the train negligently run into and struck by it and thrown to the ground upon the track upon which the train was running, and was run over by the train and received injuries from which he died.

This declaration shows no cause of action, as will be seen from principles stated in Bralley v. Railway Company, 66 W. Va. 462.

Therefore, we affirm the judgment.

Affirmed.